Opinion
Decided May 7, 1935.
Where an administrator is a party to an action and does not elect to testify the surviving party is not competent to testify as to the decedent's title to personal property as of the time before his death. In a suit against an administrator to recover bonds alleged to have been given by the decedent to the plaintiff, the latter having put in issue the question of her title by gift, though admitting that deceased died in possession of the bonds, assumed the burden of establishing an actual and unconditional delivery by the decedent to her. Hence, the admission of the decedent to the effect that "he gave" the bonds to the plaintiff, being equivocal and not necessarily implying an actual delivery, is insufficient to establish a gift.
BILL IN EQUITY, against the administrator with will annexed of the estate of Owen Kenney, second, praying that the administrator be ordered to deliver to the plaintiff as her own property certain bonds kept by the said Owen Kenney in his safety deposit box in envelopes marked "Property of Nellie Reynolds." At the trial, Joseph P. Kenney was joined as a party defendant, subject to the defendant's exception. By the terms of his will the decedent left his property in equal shares to the plaintiff and the two defendants.
Five one thousand dollar bonds were found after the testator's decease in the envelopes mentioned. Four of them were bonds of the Amoskeag Manufacturing Company and the fifth was a bond of the Texas-Louisiana Power and Light Company. All were bought by the deceased and delivered to him.
The bank book of the plaintiff, which was in evidence, indicated withdrawals on dates and amounts which might be found to correspond with the purchase of two of the Amoskeag bonds.
Subject to exception, the plaintiff was permitted to testify that the decedent bought two of the Amoskeag bonds with money furnished by her, that he delivered them to her and at the same time delivered to her the other three bonds; that all of them were later enclosed in an envelope marked as her property; that the decedent proposed to put them in his vault; and that from time to time he gave to her the coupons clipped from the bonds as interest fell due. Subsequent to final arguments the court ruled that this testimony was inadmissible under the statute, "and in reaching a final conclusion no consideration was given thereto." To this ruling the plaintiff excepted.
There was testimony of declarations made by the decedent to others than the plaintiff that the bonds belonged to the plaintiff and that she had some bonds in his vault, viz. two Amoskeag bonds which she bought herself and three Amoskeag bonds and one Texas-Louisiana bond which he gave her. Upon this testimony, in connection with the notations on the envelopes, the court found "that the decedent during his lifetime disclaimed any ownership in the bonds in question and admitted that they were the property of the plaintiff." The court ruled that the facts found were sufficient to entitle the plaintiff to a decree, to which ruling the defendants excepted. They also excepted to the decree on the ground that it could not be supported by the evidence. A bill of exceptions was allowed by Branch, J.
James A. Broderick (by brief and orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wyman orally), for the defendants.
The administrator not having elected to testify, the plaintiff's testimony was not admissible. P.L., c. 336, s. 27. Surviving parties are competent as witnesses when the estate of the decedent has no interest in the subject-matter, as where the decedent's title to real estate is in question. Crowley v. Crowley, 72 N.H. 241; Eagan v. Kenney, 75 N.H. 410. In such cases, provided the real estate is not required to pay obligations of the estate, the devisees or heirs-at-law are the successors in title of the deceased as effectually as if they claimed under his deed. Muir v. Bartlett, 78 N.H. 313. But in a case involving the decedent's title to personal property as of the moment before his death, the situation is otherwise. The executor or administrator succeeds to whatever title the decedent had, and is not divested of it by the fact (as in the instant case) that the personalty is not required to pay obligations of the deceased. Without regard to the solvency of the estate, the administrator is the holder of the title and defends in the right of the deceased.
The testimony of the plaintiff was properly disregarded, and the only question is whether the remaining evidence incorporated in the findings sustains the decree as a matter of law. The finding is in effect that the plaintiff owned all of the five bonds because the decedent admitted that she did and marked them as her property. The court ruled that it was not necessary for the plaintiff to show how she acquired title. This ruling was erroneous.
The situation is not so simple as the one where nothing appears except the fact of possession and the admission by the possessor that he is bailee for somebody else. In his opening statement, the counsel for the plaintiff relied on a gift to her by the deceased of three of the bonds in the latter's possession when he died. The plaintiff offered herself as a witness to the fact, and, although her evidence was later rejected, actually testified that the deceased delivered them to her by way of gift. She thus presented her case on the theory that her only source of title as to the three bonds was by gift from one whose prior title was admitted and whose possession at the time of his decease was also admitted.
The admission by a bailee who never had title (Bradley v. Spofford, 23 N.H. 444) differs from one by a person in continued possession who is admitted by the claimant to be the source of her title. Putting her own admission against that of the deceased, the plaintiff left herself with the burden of explaining the situation and of showing that she acquired title as she said she did. She could not get title by gift unless there was an actual and unconditional delivery to her. Burns v. Nolette, 83 N.H. 489, 492; Bean v. Bean, 71 N.H. 538, 543. If she could establish the gift by proving the delivery, subsequent possession by the donor, coupled with his declaration that he held such possession as her bailee, would bring her case within the rule of Bradley v. Spofford, supra. So the question is presented whether his declaration "I gave" states the fact of delivery necessary to establish a gift and to support a finding in favor of the plaintiff.
There are comparatively few cases where a thorough attempt has been made to analyze a declaration such as we have here. In Davis v. Zimmerman, 40 Mich. 24, the declaration was "He gave me the horse." The horse was in the control of the declarant, who was the wife of the donor and living with him. It was objected that the declaration was only a conclusion of law, and that it did not appear that exclusive possession had passed to the donee or that there was any change of possession whatsoever. Cooley, J. however, thought that the declaration could not be "treated as a conclusion merely; it avers the act of giving, and would justify a finding that a gift took place, if nothing was drawn out on further examination to qualify it." Without referring to this opinion, a later case, Campbell v. Sech, 155 Mich. 634, states flatly that "Evidence of declarations and admissions of the donor are not sufficient to establish a gift. They are only admissible as corroborative of other testimony." While the earlier case is not clearly overruled, the Michigan rule is left in some doubt.
The reasoning of Davis v. Zimmerman has its parallel in a few other cases, notably Gross v. Smith, 132 N.C. 604. In Sprouse v. Littlejohn, 22 S.C. 358, it is said that such a declaration "may sometimes be intended to include the delivery," but "we think it ought to be left to the jury to say whether the gift has been proved, including the delivery, and it ought not to be laid down as a rule of law to govern the jury, that such declarations in themselves are insufficient to prove the gift."
To say that a declaration, she has some bonds "which I gave her," unsupported by any other evidence of a delivery, includes the statement "I delivered them to her as a gift," seems to us to assume a declaration of the fact of delivery which is not in evidence. The declarant may have been wholly ignorant of the law that no gift is valid without delivery, and the trier of fact is left to mere conjecture that the declaration involved anything more than a mistaken belief that a valid gift had been made. Until the declaration may be seen to include a statement of delivery as a matter of fact, it is not evidence of a delivery.
Chambers v. McCreery, 106 Fed. Rep. 364 was a case where certain bonds in the safety deposit box of a decedent at the time of the decease were claimed by his wife to have been given to her. The court said: "On that point [delivery] the evidence should be clear and positive, and in the absence of proof of absolute possession . . . by the donee, free from the control of the donor, the mere declarations of the latter will not be sufficient to establish delivery."
"To a mind unacquainted with the technical rule that in law an actual or symbolical tradition of the chattel is necessary to transfer the title, such an act [tradition or delivery] would ordinarily not appear important. A statement, therefore, that a gift had been made would not, I think, of itself, import a compliance with all the technical requirements of a legal gift." Smith v. Burnet, 35 N.J. Eq. 314.
"It seems to us that the declarations of the alleged donor, that not only had he given the note, but had actually delivered it, would be evidence to be considered upon the issue of fact as to whether or not the note had been actually delivered, but the testimony does not bring the case within that rule. We have present declarations by the alleged donor only that he had given the note to Mrs. Rimmer, and, unless it can be inferred from that statement that actual delivery had been made, there is no competent proof of its delivery to her. . . . We believe the better rule, the one sustained by reasons of public policy and the greater weight of the authorities is that the fact of delivery must be shown by other evidence than the mere declaration of the donor, when the declaration can go no further than to express a gift, and it does not either distinctly state a delivery or facts from which actual delivery may be inferred." Atchley v. Rimmer, 148 Tenn. 303, 320, 323.
The declarations in the case at bar do not include any statement of actual delivery, as in Kenistons v. Sceva, 54 N.H. 24. There was no competent evidence, without the declarations, that the plaintiff was ever in possession of the subjects of the gift. The circumstances of the relationship of the parties afford, of themselves, no evidence of a delivery by way of gift. The trend of recent authority favors the view that mere declarations of a gift, in the absence of any other evidence of a delivery, are not sufficient evidence of that necessary fact. L.R.A. 1916 E. 288, note. In the absence of any competent evidence of such a delivery, the plaintiff could not be found to have title to two of the Amoskeag bonds or to the Texas-Louisiana bond.
Two of the Amoskeag bonds may possibly stand differently. If the money of the plaintiff in fact paid for them, there would be a resulting trust unless a contrary intention appeared. On that issue the declaration of the decedent would be competent. Since no finding was made on that issue, there can be no final order as to those two bonds.
Judgment for the defendant administrator as to the Texas-Louisiana bond and two Amoskeag bonds: new trial as to the other two bonds.
BRANCH, J., did not sit: the others concurred.